© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 

United States Court of Appeals,Fourth Circuit. 

BLACKWATER SECURITY CONSULTING, LLC, et al., Defendants - Appellants, 

v. 

NORDAN, Plaintiff- Appellee. 

No. 05-1949. 

October 31, 2005. 

Nos. 05-2033 and 05-2034 

On Notice of Appeal of A Judgment of the United States District Court for the 

Eastern District of North Carolina 

Brief for Appellants 

Greenberg Traurig, LLP, C. Allen Foster, Michael P. Socarras, Joe R. Reeder, 800 

Connecticut Avenue, NW, Washington, D.C. 20006, (202) 331 - 3100, Smith, Anderson, 

Blount, Dorsett, Mitchell & Jernigan, Kirk G. Warner, Mark A. Ash, P.O. Box 2611, 

Raleigh, North Carolina 27602, (919) 821-1220, Attorneys for Black water Security, 

Consulting, LLC, & Blackwater Lodge and Training Center, Inc.Powell & Goldstein, 

LLP, William C. Crenshaw, Ralph J. Caccia, Don R. Berthiaume, 901 New York Avenue, 

NW, Washington, DC 20001 4413, (202) 624-0066, Cranfill, Sumner & Hartzog, LLP, 

Patricia L. Holland, Rachel Esposito, 225 Hillsborough Street, Raleigh, North 

Carolina 27808, Tel: (919) 828-5100, Attorneys for Justin L. McQuown. 

*i TABLE OF CONTENTS 

JURISDICTIONAL STATEMENT ... 1 

STATEMENT OF ISSUES PRESENTED FOR REVIEW ... 2 

STATEMENT OF THE CASE ... 2 

STATEMENT OF FACTS ... 6 

SUMMARY OF ARGUMENT ... 9 

ARGUMENT ... 11 

 I THE REMAND ORDER SHOULD BE REVERSED BECAUSE ITS CONCLUSION THAT FEDERAL QUESTION 

JURISDICTION WAS LACKING RESTED ON THE ERRONEOUS ANTECEDENT THAT REMOVAL RIGHTS 

DERIVE SOLELY FROM 28 U.S.C. § 1441 ... 11 

 II. THE DISTRICT COURT ERRED BY EXCEEDING ITS AUTHORITY WHEN IT REMANDED AN LHWCA 

COVERAGE ISSUE IN DISREGARD OF THIS COURT'S HOLDING IN SHIVES ... 15 

 III. THE DISTRICT COURT ERRONEOUSLY DENIED APPELLANTS THEIR RIGHTS TO IMMUNITY BY 

REFUSING TO DISMISS THE COMPLAINT PURSUANT TO RULE 12(b)(6) ... 19 

 A. The DBA Applies to Decedents' Deaths ... 19 

 B. Where As Here The DBA Applies, Appellants Are Immune From Liability Lawsuits 

In Any Court ... 24 

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*ii IV. THE JUDICIARY MAY NOT IMPOSE STANDARDS ON THE MANNER IN WHICH THE 

PRESIDENT OVERSEES AND COMMANDS THE PRIVATE COMPONENT OF THE TOTAL FORCE IN FOREIGN 

MILITARY OPERATIONS ... 27 

CONCLUSIONS ... 30 

*iii TABLE OF AUTHORITIES 

CASES 

Akin v Big Three Industries, Inc., 851 F.Supp. 819 (E.D Tex. 1994) ... 13 

Askir v. Brown & Root Sers. Corp., No. 95 Civ. 11008(JGK), 1997 WL 598587, 

(S.D.N.Y. Sept. 23, 1997) ... 29 

Baker v. Carr, 369 U.S. 186 (1962) ... 28. 29 

Bentzlin v Hughes Aircraft Co., 833 F.Supp. 1486 (C.D.Calif. 1993) ... 28 

Borneman v. United States, 213 F.3d 819 (4th Cir 2000) ... 1, 11, 16 

Boyle v. United Technologies Corp, 487 U S. 500 (1988) ... 29 

Brady, v. Roosevelt S.S. Co., 317 U.S 575 (1943) ... 26 

Brown v. American-Hawaiian S.S. Co, 211 F.2d 16(3d Cir. 1954) ... 25 

Carr v. United States, 422 F.2d 1007 (4th Cir. 1970) ... 26 

Colon v. United State Dept. of the Navy, 223 F.Supp.2d 368 (D.P.E. 2002) ... 25 

Compare Fisher v. Halliburton, No. H-05-1731, Mem. and Order (S.D.Tex. July 1, 

2005) (2005 WL 1562411) ... 20, 23 

Crowell v. Benson, 285 U.S. 22 (1932) ... 21 

Davila-Perez v Lockheed Martin Corp., 202 F.3d 464 (1st Cir. 2000) ... 25 

*iv El-Shifa Pharmaceutical Industries Co v. United States, 378 F.3d 1346 (Fed.Cir. 

2004) ... 27 

Etheridge v. Norfolk & Western Ry Co, 9 F.3d 1087 (4th Cir 1993). ... 17 

Feres v. United States, 340 U.S. 135 (1950) ... 7, 29 

Flying Tiger Lines, Inc. v. Landy, 70 F 2d 46 (9th Cir. 1966) ... 21, 22 

Ghotra v. Bandila Shipping, Inc., 113 F 3d 1050 (9th Cir. 1997). cert. demed, 522 

U.S. 1107(1998) 20.21 

Gilligan v Morgan, 413 US 1(1973) ... 28 

Greene v Citigroup, Inc., 215 F.3d 1336, 2000 WL 647190 (10th Cir) ... 13 

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Guidry v. Sheet Metal Workers Nat. Pension Fund, 493 U.S. 365 (1990) ... 17 

Hudgens v. Bell Helicopters/Textron, 328 F.3d 1329 (11 Cir. 2003) ... 29 

In re CSX Transp., Inc., 151 F.3d 164 (4th Cir. 1998) ... 1 

Jamison v. Wiley, 14 F.3d 222 (4th Cir. 1994) ... 1 

Kollias v. D&G Marine Maintenance, 29 F.3d 67 (2d Cir. 1994), cert. denied, 513 

U.S. 1146 (1995) ... 21 

Lee v. Boeing Co., 123 F.3d 801 (4th Cir. 1997) ... 18, 19, 25 

Magnin v. Teledyne Continental Motors, 91 F.3d 1424 (11th Cir. 1996) ... 13 

Mangold v Analytic Servs., Inc., 77 F 3d 1442 (4th Cir. 1996) ... 19 

*v Marra Bros. v Cardillo, 154 F.2d 357 (3d Cir. 1946) ... 23 

Mesa v California, 489 US 121 (1989) ... 12 

Mitchell v. Forsyth, 472 U.S. 511 (1985) ... 1 

Morton v Mancari, 417 U.S. 535 (1974) ... 17 

Nauert v Ace Properties and Cas. Ins Co, Slip Copy. 2005 WL 2085544 (D.Colo. Aug. 

27, 2005) ... 25 

Northeast Marine Terminal Co., Inc v Caputo, 432 U.S 249 (1977) ... 20 

Pack v AC and S, Inc, 838 F Supp. 1099 (D.Md. 1993) ... 13 

Peterson v Blue Cross/Blue Shield of Texas, 508 F.2d 55 (5th Cir 1975) ... 12 

Poss v. Lieberman, 299 F.2d 358 (2d Cir.), cert. denied. 370 U S. 944 (1962) ... 13 

Quackenbush v. Allstate Ins. Co., 517 U.S. 706(1996) ... 1 

Republic Aviation Corp. v. Lowe, 69 F.Supp. 472 (S.D.N.Y. 1946), aff'd, 164 F 2d 18 

(2d Cir 1947) ... 22 

Richmond Screw Anchor Co. v. United States, 275 U.S. 331 (1928) ... 26 

Robin v. Sun Oil Co., 548 F.2d 554 (5th Cir. 1977) ... 25 

Ross v. DynaCorp., 362 F.Supp.2d 344 (D.D.C. 2005) ... 25 

Smither & Co. v. Coles, 242 F.2d 220 (D.C. Cir. 1957) ... 25 

*vi Shives v. CSX Transportation, 151 F.3d 164 (4th Cir. 1998) ... Passim 

Sparks v. Wyeth Laboratories, Inc., 431 F.Supp. 411 (W.D.Okla. 1977) ... 26 

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Stale ex rel. Falkner v. National Bank of Commerce, 290 F.2d 229 (5th Cir. 1961) 

... 13 

State Ivory, 906 F 2d 999 (4th Cir. 1990) ... 13 

Watson v Philip Morris Cos., Inc., 420 F.3d 852 (8th Cir. 2005) ... 13 

Willingham v. Morgan, 395 U.S. 402 (1969) ... 12, 13, 15 

Winters v. Diamond Shamrock Chemical Co., 149 F.3d 387 (5th Cir. 1998) ... 13 

STATUTES 

Defense Base Act. 42 U.S.C. § 1651, et seq ... 14, 19 

Longshore and Harbor Workers' Compensation Act. 33 U.S.C. § 901, et seq ... 1 

28 U.S.C. § 1291 ... 1 

28 U.S.C. § 1331 ... 12 

28 U.S.C. § 1441 ... Passim 

28 U.S.C. § 1442 ... Passim 

28 U.S.C. § 1446 ... 12 

28 U S.C. § 1447 ... 1, 4, 6, 17, 29 

42 U.S.C. § 247b(k) ... 26 

42 U S.C. § 1653 ... 15 

*vii 46 U S.C. § 745 ... 26 

48 U.S.C. § 1498(a) ... 26 

INSTRUCTION 

DoD Instruction 3020.37 (Nov 6. 1990) (revised Jan. 26, 1996) ... 6, 27 

RULES 

Fed.R.App.P. 8 ... 6 

Fed.R.Civ.P 9(b) ... 3, 5, 6 

Fed.R.Civ.P 12(b)(6) ... 3, 4, 5, 6, 16 

*1 JURISDICTIONAL STATEMENT 

The District Court had removal jurisdiction under 28 U.S.C. § 1442(a)(1). This 

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Court has appellate jurisdiction under 28 U.S.C. § 1291 because the District Court 

entered a final Order, Appellants' Appendix at 35 (“ App.” ), that ended 

proceedings below by remanding the case to state court, Quackenbush v Allstate Ins.

Co., 517 U.S. 706, 715 (1996), and that conclusively denied Appellants' right to

immunity, and to federal adjudication of their immunity claim, by denying their 

motions to dismiss. Mitchell v. Forsyth, 472 U.S. 511, 525 (1985); Jamison v Wiley,

14 F.3d 222, 234 (4th Cir. 1994). Section 1447(d), Title 28, United States Code, 

does not bar appellate jurisdiction because coverage questions under the Defense 

Base Act (“ DBA” ), 42 U.S.C. § 1651 et seq., and the Longshore and Harbor Workers' 

Compensation Act (“ LHWCA” ), 33 U.S.C. § 901 et seq., are reviewable as conceptual 

antecedents to a remand order Borneman v United States, 213 F.3d 819 (4th Cir. 

2000); In re CSX Transp, Inc., 151 F.3d 164, 167 (4th Cir. 1998) (“ Shives” ). The 

Judgment was entered on August II, 2005. App at 35 Notices of appeal were timely 

filed on August 30 and September 9, 2005 App. at 8 and 11.[FN1] 

FN1. Appellate jurisdiction issues have been briefed in No. 05-2033 in 

Appellants Blackwater Security Consulting, LLC's and Blackwater Lodge and 

Training Center, Inc.'s Response to Appellee's Motion to Dismiss for Lack of 

Appellate Jurisdiction, and in No. 05-2034 in Appellant Justin L. McQuown's 

Response to Appellee's Motion to Dismiss for Lack of Appellate Jurisdiction 

STATEMENT OF ISSUES PRESENTED FOR REVIEW 

1. Whether the District Court erred by exceeding its authority when it remanded to 

a state court the issue of whether Appellants are immune from liability under the 

DBA for the deaths of persons engaged in official duties. under federal contracts, 

to protect the supply lines of the U.S Armed Forces in Iraq. 

2. Whether the District Court erred by refusing to dismiss a wrongful death and 

fraud action arising from battlefield casualties sustained by DBA insureds 

providing an armed escort, under federal contracts, for wartime supply trucks bound 

for U.S. Army Camp Ridgeway in Iraq, designated by the Secretary of Defense as 

official duties in support of the Coalition Provisional Authority. 

STATEMENT OF THE CASE 

On January 5, 2005, Plaintiff-Appellee Richard P. Nordan (“ Nordan” ), as ancillary 

administrator for the separate estates of Stephen S. Helvenston, Mike R Teague, 

Jerko Gerald Zovko and Wesley J.K. Batalona (the “ Decedents” ), filed a Complaint 

in the North Carolina General Court of Justice, Superior Court Division, in Wake 

County, against Defendants-Appellants Blackwater Security Consulting, LLC and 

Blackwater Lodge and Training Center, Inc. (collectively, “ Blackwater” ). and 

Defendant-Appellant Justin L. McQuown (“ McQuown” ) and Thomas Powell (the “ 

Complaint” ).[FN2] According to the Complaint, enemy insurgents ambushed and killed 

the Decedents, burned their bodies and hung two from a bridge over the Tigris 

River, while the Decedents were escorting a supply convoy through the city of 

Fallujah to U.S. Army Camp Ridgeway. Compl. „„ 17, 61 App at 53-54 It alleges 

causes of action for wrongful death and fraud, seeks damages in an unspecified 

amount, and demands a jury trial. Compl. „„ 68, 94 and Prayer 10. App. at 68. 76. 

78. 

FN2. Thomas Powell was voluntarily dismissed on April 12, 2005. 

The Complaint alleges that the Decedents “ were at no relevant time employees” of 

Blackwater, Compl. „31, App. at 57 which is critical to this case. The DBA provides 

exclusive federal benefits under the LHWCA “ in respect to the injury or death of 

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any employee engaged in any employment” described in 42 U.S.C. § 1651(a)(1)-(6)

(emphasis added). Thus the Complaint, while studiously avoiding a citation to 

federal law, as it must, pleads that the DBA is not applicable on the ground that 

Decedents were not employees. 

On January 24, 2005, all Defendants filed a Notice of Removal asserting immunity 

from suit in any court on the grounds that the United States Department of Labor 

has determined that the Decedents were employees of Blackwater. Notice of Removal 

„„ 16-20, App. at 3940, and that the DBA and LHWCA are exclusive of any other 

liability. Notice of Removal „ 25, App. at 41. On January 31, 2005, Blackwater 

filed a Motion to Dismiss in the District Court pursuant to Rules 12(b)(6) and 

9(b), Fed.R.Civ.P., on the grounds, inter alia, that the DBA excludes any other 

liability, and that Nordan's fraud allegations lacked the required specificity 

McQuown also moved to dismiss pursuant to Rule 12(b)(6) on the grounds that the DBA 

and the LHWCA “ provide the exclusive remedy available to Plaintiff for the claims 

alleged in the Complaint.” Defendant Justin L. McQuown's Motion to Dismiss „ 1, 

App. at 135. 

While having specifically raised a DBA coverage question, Nordan opposed dismissal, 

and moved to remand, arguing lack of federal question jurisdiction. Plaintiffs 

Memorandum of Law in Support of Motion for Remand at 16, App. at 165 (“ as alleged 

in the Complaint, the Decedents were not ‘ employees' the [DBA] simply does not 

apply” ). Blackwater opposed remand, explaining. inter alia, that “ [t]he DBA 

explicitly provides the exclusive liability” here, Blackwater Defendants' 

Memorandum of Law in Opposition to Plaintiff's Motion for Remand at 7 (“ Blackwater 

Remand Opp.” ), App. at 286 (emphasis in original), and that DOL should answer DBA 

coverage questions “ in the first instance[ ]” Id at 13 n.15, App. at 292. McQuown 

also opposed Remand 

On August 11, 2005, the District Court, without a hearing, entered an Order that 

(1) granted Plaintiffs Motion to Remand citing 28 U.S.C. § 1447(c), and (2) “ 

[w]here the court lacks subject matter jurisdiction over this action, the court 

DENIES AS MOOT defendants' motions to dismiss brought under Federal Rules of Civil 

Procedure 12(b)(6) and 9(b).” Order at 21. The District Court “ REMANDED to the 

Superior Court of Wake County, North Carolina.” Id. 

The District Court held that “ [t]he right to remove a case from state to federal 

court derives solely from 28 U.S.C. § 1441[.]” Id. at 7 (emphasis added). It 

reasoned that. because § 1441(a) requires original jurisdiction in the district 

court, absent an allegation of diversity jurisdiction, “ the propriety of removal 

depends on whether the suit raises a federal question [.]” Id. at 7. It held that 

complete preemption and a unique federal interest do not justify removal. Id. at 8 

The District Court acknowledged that in Shives this Court held that “ regardless of 

whether the district court lacked jurisdiction upon removal, remand to the state 

court was not proper” because any “ ‘ interpretation of the LHWCA is a matter for 

the federal executive and federal appeals courts.’ ” Order at 19 (quoting Shives,

151 F.3d at 167). It decided, however, not to follow Shives 

“ At first blush, where this court, like the court in Shives, is facing a ‘ federal 

question of LHWCA coverage,’ Shives, 151 F.3d at 167, it appears that the 

appropriate course of action is to dismiss the action outright for lack of subject 

matter jurisdiction rather than remand to the state court. Such a disposition, 

however, is premature. Notably, in Shives, the Fourth Circuit directed dismissal 

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only after that court, sitting as a federal court of appeals, had determined the 

coverage issue under the LHWCA. See 151 F.3d at 167-171. Although the Fourth 

Circuit in Shives was in a position to resolve the question of coverage, ‘ a matter 

for the federal executive and federal appeals courts,’ id. at 167, this court is 

not.” 

Order at 20. Thus, it remanded and denied the motions to dismiss as moot[FN3] 

FN3. On August 11, 2005, the District Court filed and entered a Judgment in a 

Civil Case in which it “ ORDERED, ADJUDGED and DECREED that the court GRANTS 

plaintiffs motion to remand, pursuant to 28 U.S.C. § 1447(c)” and “ [w]here 

the court lacks subject matter jurisdiction over this action, the court 

DENIES AS MOOT defendants' motions to dismiss brought under Federal Rules of 

Civil Procedure 12(b)(6) and 9(b).” It further ordered that “ [t]his case is 

REMANDED to the Superior Court of Wake County, North Carolina.” 

Blackwater and McQuown filed petitions for writs of mandamus in No. 05-1949 and No. 

05-1992, and filed timely notices of appeal in No. 05-2033 and No. 05-2034, 

respectively. On October 4, 2005, the North Carolina Superior Court denied 

Blackwater's motion to stay proceedings while federal appeals are pending 

Blackwater moved in this Court to stay state court proceedings pursuant to 

Fed.R.App.P. 8, and this motion is pending. Nordan moved to dismiss these appeals 

for lack of appellate jurisdiction, which Appellants have opposed 

STATEMENT OF FACTS 

Federal contractors, with tens of thousands of employees, accompany U.S. Armed 

Forces overseas as a critical component of the war effort. They provide a range of 

security, logistics, engineering, construction, intelligence and other vital 

support for the war effort as a significant part of the Total Force mix.[FN4]

According *7 to one published estimate, the more than 20,000 people deployed by 

contractors as part of the Total Force in Iraq have sustained more casualties “ 

than any single U.S Army division and more than the rest of the coalition 

combined.” [FN5] The question whether contractors may be sued, in any court, for war 

casualties while the military services may not, see Feres v United States, 340 U.S 

135 (1950), could determine whether the President, as Commander-in-Chief, will be 

able to deploy the Total Force decades into the future. 

FN4. DoD Instruction 3020.37 (Nov. 6, 1990) (revised Jan. 26, 1996), provides 

as follows: “ It is DoD policy that: /4.1 The DoD Components shall rely on 

the most effective mix of the Total Force, cost and other factors considered, 

including Active, Reserve, civilian, host-nation and contract resources 

necessary to fulfill assigned peacetime and wartime missions.” App. at 569. 

FN5. P.W. Singer, “ Outsourcing War,” 84 Foreign Affairs 119, 122, 127 

(Mar./Apr. 2005), App. at 449, 454. 

Blackwater Security Consulting, LLC is a federal contractor supporting the United 

States Armed Forces in Iraq.[FN6] According to the Complaint, on March 31. 2004, four 

men working for Blackwater were providing an armed security escort for catering 

trucks headed to U.S. Army Camp Ridgeway in Iraq. Com pl „„ 57-59, App. at 18-19. 

At approximately 10:00 a.m. local time, while their convoy was driving through the 

city of Fallujah, the four armed men in the security escort (the “ Decedents” ) “ 

were ambushed by hostile Iraqi insurgents.” Compl. „ 61, App at 66-67. They were 

killed by enemy gunfire, their bodies were burned, and two were hung from a Tigris 

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River bridge. Compl. „61, App. at 66-67. 

FN6. Compl. „„ 18-19, 57, App. at 54, 65-66; Notice of Removal „„ 5-6. 7-11. 

14 App. at 38-39. 

According to the Complaint, the Decedents were killed by enemy insurgents because 

they were deployed to Iraq too soon, Compl. „„ 35, 48, App. at 59, 63, and *8 not 

soon enough. Compl. „ 36, App. at 59. It alleges “ they were provided with Mach 4 

semiautomatic weapons” instead of “ ‘ SAW Mach 46’ weapons [ ]” Compl „ 38, 

App. at 60. It further alleges that they “ never had an opportunity to test. fire 

or sight their weapons[,]” Compl. „ 38, App. at 60, and that “ [t]he two vehicles 

that this four-man team drove were not armored vehicles.” Compl. „ 53, App. at 64. 

In addition, it asserts that “ U.S. State Department ... policies for personnel 

security details. require a six-man detail working in the threat level of Iraq” 

which “ were completely disregarded [.]” Compl. „ 52, App at 64. It also alleges 

that McQuown, inter alia, failed to provide adequate training and intelligence data 

to Decedents. Compl. „ 28, App. at 56. Thus the Complaint seek to regulate the 

training, armament, and deployment orders of private security personnel assigned to 

classic military duties in a war zone. 

On October 18, 2004, the United States Department of Labor (“ DOL” ) issued a 

Compensation Order, Award of Compensation, finding that Decedent Jerko Zovko, “ 

while performing service as an employee for the employer, sustained injuries 

resulting in his death and that such death comes within the purview of the [DBA].” 

Notice of Removal „ 19, App. at 40. The widows of Decedents Helvenston and Batalona 

filed Claims for Death Benefits under the DBA in April and May 2003, and are 

receiving DBA benefits of $1,000 per week, tax free. Notice of Removal „„ 16-17, 

App. at 39-40. The widow of Decedent *9 Teague did not apply for DBA benefits, but 

is nonetheless being paid $1,000 per week, tax free, under the DBA. Notice of 

Removal „ 18, App. at 40. 

SUMMARY OF ARGUMENT 

The use of battlefield contractors to protect the U.S. Armed Forces' supply lines 

may be relatively new military doctrine, but acknowledging the President's 

constitutional authority as Commander-in-Chief to deploy such a combination of 

forces, without state regulation of the battlefield, only requires that the Court 

afford existing federal statutes their plain and ordinary meaning under established 

precedents. Under 28 U.S.C. § 1442(a)(1), contractors acting under a federal 

officer, and sued for their actions under color of such office, have an absolute 

right to remove such lawsuits to the district courts regardless of the existence of 

diversity or federal question jurisdiction. Here, the District Court's remand order 

should be reversed because it is based on the erroneous conceptual antecedent that 

the right to remove a case derives solely from 28 U.S.C. § 1441, and that the North 

Carolina Superior Court may decide whether the DBA or LHWCA applies. 

By remanding a case raising DBA coverage issues, moreover, the District Court 

disregarded this Court's decision in Shives, which holds that a district court 

remand of LHWCA coverage issues is reviewable and must be vacated with instructions 

to dismiss. Although the District Court acknowledged that Shives directly applies, 

it did not follow Shives. The District Court concluded. in error, that it lacks 

power to comply with Shives, on the mistaken ground that the district courts have 

no role in the interpretation of the DBA. In fact, this Court held that the 

district courts. not the Court of Appeals, must initially review DBA coverage 

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determinations on appeal from the Benefits Review Board. 

Because the DBA applies here, and makes Appellants immune from suit in state or 

federal court, the District Court also erred by denying as moot Appellants' motions 

to dismiss the Complaint. The DBA adopts the LHWCA's definition of employee, which 

provides that “ employee” means “ any person engaged in” the types of employment 

covered by the statute. 33 U.S.C. § 902(3). The Decedents were persons engaged in 

employment covered by the DBA because they were engaged in public work connected 

with war activities, 42 U.S.C. § 1651(a)(4) and (b)(1): were providing security for 

food trucks ordered to a military base in Iraq, id. at § 1651(a)(1); and were “ 

providing welfare or similar services for the benefit of the Armed Forces pursuant 

to appropriate authorization by the Secretary of Defense” “ outside the 

continental United States[.]” Id. at § 1651(a)(6). Since the DBA applies, it 

destroys all tort liability potentially arising from Decedents' deaths, making 

Appellants immune from suit. Id. at § 1651(c), 33 U.S.C. § 905 

Even if the DBA were not applicable, the constitutional separation of powers would 

preclude judicial intrusion into the manner in which the contractor component of 

the American military deployment in Iraq is trained, armed, and deployed. Decedents 

were performing a classic military function-providing an armed escort for a supply 

convoy under orders to reach an Army base-with an authorization from the Office of 

the Secretary of Defense that classified their missions as “ official duties” in 

support of the Coalition Provisional Authority Federal courts, and a fortiori state 

courts, may not impose liability for casualties sustained in the battlefield in the 

performance of these duties. A North Carolina trial court may not adjudicate 

national political questions that the Supreme Court has deemed non-justiciable by 

federal courts. 

Were this Court not to vacate the Order below, the practical effect would be to 

allow Plaintiff to regulate the conduct of the Iraq war through the state courts. 

thereby abrogating the jurisdiction of federal courts to safeguard unique federal 

interests. By applying the DBA as Congress intended, the Court would preserve the 

correct federal and state balance, as well as comity between federal powers. 

ARGUMENT 

I. THE REMAND ORDER SHOULD BE REVERSED BECAUSE ITS CONCLUSION THAT FEDERAL QUESTION 

JURISDICTION WAS LACKING RESTED ON THE ERRONEOUS ANTECEDENT THAT REMOVAL RIGHTS 

DERIVE SOLELY FROM 28 U.S.C. § 1441. 

This Court reviews the conceptual antecedents of remand orders de novo, and 

reverses remand orders if their antecedents are legally erroneous. Borneman, 213 

F.3d at 829; Shives, 151 F.3d at 171. This case involves a classic instance of a 

remand that should be reversed, not because of an error on whether there is federal 

*12 question jurisdiction, but because of an erroneous antecedent that incorrectly 

made an issue out of the existence of a federal question 

The District Court reasoned that “ [t]he right to remove a case from state to 

federal court derives solely from 28 U.S.C. § 1441” (emphasis added); that § 1441 

is premised on the district court having original jurisdiction; and that absent an 

allegation of diversity “ the propriety of removal depends on whether the suit 

raises a federal question[.]” Order at 7. The District Court's conceptual 

antecedent to remand was therefore its conclusion that “ [t]he right to remove a 

case from state to federal court derives solely from 28 U.S C § 1441.” The remand 

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order should be reversed because 28 U.S.C. § 1442(a)(1) afforded Appellants an 

absolute right of removal, regardless of the existence of a federal question under 

28 U.S.C § 1331[FN7] 

FN7. The Notice of Removal „ 1 cited 28 U.S.C. §§ 1441 and 1446 as authority 

for removal. It should have cited id. at § 1442(a)(1), which is “ an incident 

of federal supremacy ... one of [whose] purposes was to provide a federal 

forum for cases where federal officials must raise defenses arising from 

their official duties.” Willingham v. Morgan, 395 U.S. 402, 405 (1969). 

Regardless, in this Court, the Notice of Removal should be deemed amended to 

cite the appropriate provision. Id. at 407, n 3; 28 U.S.C. § 1653. 

Under § 1442(a)(1), contractors that are persons (1) acting under any federal 

officer, see Peterson v. Blue Cross/Blue Shield of Teas, 508 F.2d 55, 58 (5th Cir 

1975) (corporations are “ persons” under § 1442(a)(1)); (2) who have a colorable 

claim to a federal defense, Mesa v. California, 489 U.S. 121, 129 (1989)); and (3) 

who are sued for actions taken under color of office or at the direction of federal 

*13 officers, may remove such suits from state to federal court. Greene v

Citigroup. Inc., 215 F.3d 1336, 2000 WL 647190, at *2 (10th Cir. 2000); Winters v

Dtamond Shamrock Chem. Co., 149 F.3d 387, 397-398 (5th Cir. 1998) (manufacturer of 

Agent Orange); Akin v. Big Three Ind., Inc., 851 F.Supp. 819 (E.D. Tex. 1994) 

(military jet engine repair company); Pack v. AC and S, Inc., 838 F.Supp. 1099 

(D.Md 1993) (manufacturer of turbine generators). Section 1442(a)(1) confers 

subject matter jurisdiction to the federal district court for purposes of removal, 

regardless of whether the suit could originally have been brought there Willingham,

395 U.S. at 406; Magnin v. Teledyne Continental Motors, 91 F.3d 1424, 1427 (11th 

Cir. 1996); State ex rel. Falkner v National Bank of Commerce, 290 F.2d 229, 231 

(5th Cir. 1961); accord Watson v Philip Morris Cos, Inc. 420 F.3d 852, 855-56 (8th 

Cir. 2005). This right of removal is therefore absolute 

In this case, the Complaint, the Notice of Removal,[FN8] and the record as a 

whole[FN9] set forth all the facts necessary for removal jurisdiction. First.

Appellants *14 were persons acting under a federal officer. On March 4, 2004, the 

Secretary of Defense authorized Decedents Teague and Helvenston to travel 

FN8. The facts alleged in the Notice of Removal should be taken as true and 

considered in addition to the facts alleged in the Complaint. Poss v.

Lieberman, 299 F.2d 358, 359 (2d Cir.), cert. denied, 370 U.S. 944 (1962) 

(facts stated in removal petition are proper basis for decision on a remand 

motion). 

FN9. State v. Ivory, 906 F.2d 999, 1001 n.2 (4th Cir. 1990) (reviewing not 

only removal petition but also “ the record taken as a whole” ); see

Willingham, 395 U S at 407 n.3 (later filed affidavits cure any 

jurisdictional defect in § 1442 removal). Appellants have submitted “ the 

record taken as a whole” as their Appendix to this Brief because, under this 

Court's standard in State v Ivory, all components of the record including 

memoranda of law are independently relevant. 

“ in the performance of official duties, either within or outside the continental 

limits of the United States and return to Washington, D.C. from March 4, 2004 to 

September 30, 2004, at no cost to the government. The purpose of this travel is to

provide services to the Coalition Provisional Authority (CPA).” 

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App. at 441-42 (emphasis added). Moreover. it is uncontested here that Decedents 

were subordinate contractors providing security to ESS, a food catering services 

contractor to the U.S. Armed Forces, and that the ESS contract is alleged to have 

required Blackwater to comply with State Department policies. Compl. „„ 18,21-22, 

52; Notice of Removal „„ 7-8, 10. In addition, the Decedents were in a war zone 

protecting the supply lines of the U.S. Army, and, hence, under the military chain 

of command leading to the President. 

Second, Appellants had a colorable federal defense, which is the subject of this 

appeal. The fact that DOL affirmatively determined that Decedent Zovko is an 

employee for DBA purposes and, as to the other Decedents, is actually paying DBA 

benefits, Notice of Removal „„ 16-20, App. at 39-40, demonstrates the existence of 

a more than colorable federal defense under the DBA's exclusivity provision. See 42 

U.S.C. § 1651(c); see also 33 U.S.C. § 905. 

Third, Nordan sued Blackwater and McQuown as a result of actions they allegedly 

took when providing security for a convoy bound for U.S. Army Camp *15 Ridgeway, 

Compl. „„ 15, 51-57, including Blackwater's alleged violation of State Department 

requirements incorporated in the ESS contract. Compl „ 52 The official nature of 

the Decedents' actions is reinforced and underscored by the letters to them from 

the Office of the Secretary of Defense, authorizing them to travel “ in the 

performance of official duties. to provide services to the Coalition Provisional 

Authority (CPA).” App. at 441-42. 

Because both the Complaint and the Notice of Removal set forth all the facts 

necessary for an independent basis for jurisdiction under 28 U.S.C. § 1442(a)(1), 

regardless of diversity or federal question, and because the defect to be cured 

consisted of a omitted citation to § 1442, the Court should allow Appellants, under 

28 U.S.C. § 1653, to cure any jurisdictional defect arising from the omission of a 

reference to § 1442. See Willingham, 395 U.S. at 407 n.3. 

Because “ [t]he right to remove a case from state to federal court” does not. 

contrary to the District Court's antecedent, “ derive[] solely from § 1441 [,]” 

Order at 7, but also from § 1442, the remand order should be reversed. 

II. THE DISTRICT COURT ERRED BY EXCEEDING ITS AUTHORITY WHEN IT REMANDED AN LHWCA 

COVERAGE ISSUE IN DISREGARD OF THIS COURT'S HOLDING IN SHIVES. 

A central issue in this case is whether the LHWCA, as applied through the DBA, 

covers Decedents' deaths. The Complaint „ 31 pleads that the Decedents were 

independent contractors and not employees, and Nordan opposed Appellants' *16

motions to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) by urging the District Court 

to adjudicate the coverage issue. Plaintiffs Memorandum of Law in Opposition to 

Blackwater's Motion to Dismiss at 14-21, App. at 196-203 The District Court agreed 

that “ this court, like the court in Shives, is facing a ‘ federal question of 

LHWCA coverage[.]’ ” Order at 20 (quoting Shives, 151 F.3d at 167). As a result. 

the District Court exceeded its authority.[FN10] The Order, having failed to grant the 

dismissal required by Shives and remanded the LHWCA coverage issue to a state 

court, should be reversed. 

FN10. Borneman, 213 F.3d at 826 (28 U.S.C. § 1447(d) “ prohibits review of 

district courts' determinations of whether jurisdictional statutes have been 

satisfied, not review of determinations where district courts exceed their 

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jurisdictional authority” ). 

Shives applies directly to this case In Shives, a port worker initiated a 

negligence action in state court as permitted by the Federal Employers' Liability 

Act. 45 U.S.C. § 51 et seq., and also filed a protective claim for benefits under 

the LHWCA. 151 F.3d at 166. The employer removed and moved to dismiss, arguing that 

the negligence action was preempted by LHWCA coverage. The worker contended he was 

not covered by the LHWCA, and that his benefits claim was only precautionary, 

because his employment was not maritime in nature. The lower court, as in this 

case, remanded the case and refused to dismiss. 

The Court first determined that the LHWCA was applicable, and then decided that “ 

LHWCA coverage is exclusive and preempts Shives from pursuing *17 an FELA claim for 

negligence in state court.” Id. at 171 (citing Etheridge v Norfolk & Western Ry.

Co., 9 F.3d 1087. 1091 (4th Cir. 1993)). Because the LHWCA creates an exclusive 

administrative procedure for all covered claims, the Court noted that it faced a “ 

procedural conundrum” very much like the one here. 

“ Thus, we are faced with an LHWCA case over which neither the state court nor the 

district court had jurisdiction because such a claim [under the LHWCA] could only 

be filed in the first instance with the Secretary of Labor” 

151 F.3d at 171. 

The Court held that these situations should be resolved by vacating the remand 

order. notwithstanding the language in 28 U S.C. § 1447(d) concerning appeals of 

remands for lack of subject matter jurisdiction, because the alternative would have 

remanded an LHWCA coverage issue to a state court lacking any role in the 

administration of the LHWCA's exclusive administrative procedures. Shives, 151 F.3d 

at 171. Although the Shives Court provided no further rationale. additional support 

for the Shives holding is found in the fact that the Court had to reconcile 

Congress' intent in the LHWCA, with its intent in 28 U.S.C. § 1447(d). and in such 

situations 

“ [i]t is an elementary tenet of statutory construction that ‘ [w]here there is no 

clear intention otherwise, a specific statute will not be controlled or nullified 

by a general one[.]’ ” 

Guidry v. Sheet Metal Workers Nat. Pension Fund, 493 U.S. 365, 375 (1990) (quoting 

Morton v. Mancari, 417 U.S. 535, 550-51 (1974)). 

*18 In this case, the District Court admitted that “ [a]t first blush, where this 

court, like the court in [Shives, 151 F.3d 164 (4th Cir. 1998)], is facing a ‘ 

federal question of LHWCA coverage,’ Shives [sic] 151 F.3d at 167, it appears that 

the appropriate course of action is to dismiss the action outright for lack of 

subject matter jurisdiction rather than to remand to the state court.” Order at 

20. It went on, however. to hold (erroneously) that dismissing the Complaint was “ 

premature” because the question of LHWCA coverage is “ ‘ a matter for the federal 

executive and federal appeals courts' ” and the district courts have no subject 

matter jurisdiction on DBA coverage issues. Id. (quoting Shives, 151 F.3d at 167): 

see Order at 12 (concluding, again erroneously, that in a DBA case final orders of 

the Benefits Review Board are appealed to the Court of Appeals). 

The District Court's reasoning is fundamentally flawed and its conclusion wrong. 

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The only meaningful distinction between the DBA and the LHWCA in the situation at 

hand is that-precisely contrary to the District Court's statement of the law of the 

Circuit-“ judicial review of DBA claims differs from judicial review of LHWCA 

claims” because “ [a]fter the administrative determination and initial appeal to 

the Board, jurisdiction for judicial review in DBA cases lies in the appropriate

district court, not in the court of appeals.” Lee v. Boeing Co, 123 F.3d 801, 805 

(4th Cir. 1997) (emphasis added). 

*19 Thus, the District Court's decision does not comport with this Court's 

instructions in Shives that LHWCA coverage issues may not be remanded to the state 

courts. that such remands will be vacated, and that suits claiming liability for 

deaths or injuries covered by the LHWCA must be dismissed for lack of subject 

matter jurisdiction in both the federal courts and the state courts. 

III. THE DISTRICT COURT ERRONEOUSLY DENIED APPELLANTS THEIR RIGHTS TO IMMUNITY BY 

REFUSING TO DISMISS THE COMPLAINT PURSUANT TO RULE 12(b)(6). 

Even if the remand order were not reviewable or reversible, the Order contains a 

separate ruling denying Appellants' Rule 12(b)(6) motions to dismiss. Mangold v.

Analytic Servs., Inc., 77 F.3d 1442, 1446 (4th Cir. 1996) (where remand is ordered 

and immunity is denied in the same order, the denial of immunity is reviewable as a 

separate decision). The District Court's refusal to dismiss the Complaint is a 

denial of immunity from suit, and therefore must be reversed 

A. The DBA Applies To Decedents' Deaths. 

The LHWCA's presumption of coverage, 33 U.S.C. § 920, “ shall apply” under the DBA 

because nothing in the DBA modifies it 42 U.S.C. § 1651(a); Lee. 123 F.3d at 804. 

Thus, under the DBA “ it shall be presumed, in the absence of substantial evidence 

to the contrary-(a) That the claim comes within the provisions of this chapter.” 

33 U.S.C. § 920(a). By its plain meaning, the LHWCA presumes coverage

automatically, namely, without requiring any prima *20 facie showing of coverage. 

Id. Even without the LHWCA's presumption of coverage--but all the more so with it--

the facts alleged in the Complaint and found in the record entitle Appellants to 

the conclusion that the DBA applies here. 

Under the LHWCA, coverage depends on the “ status” and “ situs” of the injured or 

the decedent. Northeast Marine Terminal Co., Inc v Caputo, 432 U.S 249, 264-65 

(1977). Because the DBA borrows the same coverage structure. Nordan bears the 

burden to overcome the DBA's presumption of coverage through substantial evidence 

that the Deceased were not employees (status), and that their employment (situs) 

was not covered by the DBA 

The DBA adopts the LHWCA definition of “ employee,” because the DBA does not 

define “ employee” and therefore does not modify the LHWCA definition Compare 43 

U.S.C. § 1651(a) with 33 U.S.C. §§ 902(3) and 903(a). The LHWCA provides that “ 

[t]he term ‘ employee’ means any person engaged in” the types of employment 

covered in the statute. Id. at § 902(3) (emphasis added). Accordingly, by the 

literal terms of the LHWCA as applied in the DBA, “ any person engaged in” the 

types of employment covered in the DBA, 42 U S.C. § 1651 (a)(1)-(6), is an “ 

employee” under the DBA. Ghotra v. Bandila Shipping, Inc., 113 F.3d 1050, 1060 

(9th Cir. 1997), cert. denied, 522 U.S. 1107 (1998) (holding that self-employed 

marine surveyor falls within the scope of the LHWCA *21 and, therefore. that “ 

state wrongful death remedies were preempted” ).[FN11] As a result, an “ employee” 

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under the LHWCA may be self-employed and frequently is Id. at 1059. 

FN11. Ghotra correctly distinguishes Crowell v. Benson, 285 U.S. 22, 65 

(1932) (district court did not err in permitting trial de novo of DOL's 

determination of employment), because Crowell dealt with whether a masterservant relationship was needed to establish no-fault liability, while Ghotra

concerned whether survivors' LHWCA claims under 33 U.S.C. § 905(b) preempted 

state remedies. 

Reading the DBA's definition of “ employee” more narrowly than the LHWCA's would 

not be sensible, because Congress surely understood that substituting federal 

liability for private liability imposed by the states is even more necessary under 

the DBA than under the LHWCA While the “ central purpose underlying the LHWCA ... 

[is] to create a ‘ uniform compensation system’ [,]” id (quoting Kollias v D&G

Marine Maintenance, 29 F.3d 67, 74 (2d Cir 1994). cert denied, 513 U.S. 1146 

(1995)), that same purpose is even more compelling under the DBA. The DBA deals 

with private support for the military in the international domain, where every 

impulse in the Constitution is to unite the fifty states as one. 

Decedents' employment falls squarely within the scope of the DBA In Flying Tiger

Lines, Inc. v. Landy, 370 F.2d 46 (9th Cir. 1966), the Ninth Circuit considered 

whether the pilot of an airplane operated under a U.S. Air Force contract, which 

disappeared “ while transporting military personnel from Travis Air Force Base in 

California to Viet Nam via Manila[,]” was engaged in the type of *22 employment to 

which the DBA applied. The court correctly held that such employment was “ public 

work” under the DBA, 42 U.S.C. § 1651 (a)(4), because the DBA's definition of “ 

public work” includes “ any project, whether or not fixed .. involving removal..., 

including but not limited to projects or operations under service contracts and 

projects in connection with the national defense or with war activities[.]” Id. at 

§ 1651(b)(1); see Flying Tiger, 370 F.2d at 49. 

Likewise, the DBA covers employment “ at any military, air, or naval base acquired 

after January 1, 1940, by the United States from any foreign government[,]” 42 

U.S.C. § 1651(a)(1), and “ shall include any injury or death occurring to any such 

employee during transportation to or from his place of employment, where the 

employer or the United States provides the transportation or the cost thereof.” 

Id. at § 1651(a). Decedents' employment was “ at” a military base that the United 

States, as of March 31, 2004, had acquired from the enemy government of Iraq by 

military force, overthrow and occupation, inasmuch as Decedents' mission was to 

provide war zone escort for trucks to U.S. Army Camp Ridgeway in Iraq. It has long 

been held that a death while in transit to a military base is employment at a 

military base under the DBA. See Republic Aviation Corp. v. Lowe, 69 F.Supp. 472 

(S.D.N.Y. 1946), aff'd, 164 F.2d 18 (2d Cir. 1947). cert. denied, 333 U.S. 845 

(1948) (pilot killed while being sent to far eastern air *23 base was engaged in 

employment at a military base within the meaning of 42 U.S.C. § 1651(a)(1)). 

Decedents were also engaged in employment “ outside the continental United States 

by an American employer providing welfare or similar services for the benefit of 

the Armed Forces pursuant to an appropriate authorization by the Secretary of 

Defense[.]” Id. at § 1651(a)(6). The term “ welfare or similar services” includes

securing food supplies to feed troops under contract with the U.S. Armed Forces. 

The Office of the Secretary of Defense invited the Decedents to travel “ in the 

performance of official duties” ... “ to provide services to the Coalition 

Provisional Authority (CPA).” App. at 441-42. This, obviously, constitutes “ 

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appropriate authorization by the Secretary of Defense.” See 42 U S.C § 1651(a)(6). 

The Complaint here lacks any mens rea allegation that Blackwater or McQuown 

intended to kill the Decedents. Compare Fisher v. Halliburton. No. H-05-1731, Mem. 

and Order (S.D.Tex. July 1, 2005)(2005 WL 1562411). Even if there were such an 

allegation, however, Congress intended that the LHWCA would provide coverage in the 

sometimes violent surroundings of the waterfront, and therefore has been held to 

apply in spite of compelling evidence of foul play. See Marra Bros. v. Cardillo,

154 F.2d 357 (3d Cir. 1946) (discovery of the body of a hatch foreman in forepeak 

of boat under heavy wire hawser, after news that his *24 stevedoring gang was being 

laid off, was compensable and in the course of employment under LHWCA).[FN12] 

FN12. Conclusory allegations of intent to kill or injure should not be deemed 

sufficient to defeat Congress' intent in the DBA to exclude other liability. 

See 42 U.S.C. § 1651(c); see also 33 U.S.C. § 905. Since intentionally 

assigning employees to dangerous missions is often necessary for contractors 

that support U.S. military operations, permitting conclusory allegations of 

intent to kill or injure employees, without any other foundation than the 

known dangers of battle, might not be sanctionable under Fed.R.Civ.P. II and 

yet could be used to expose contractors to liability risks that Congress 

foreclosed in the DBA. 

Thus, the DBA is presumed to apply and, far from there being any substantial 

evidence to the contrary, the allegations in the Complaint and the facts proffered 

by Nordan amply show that the DBA applies here. 

B. Where As Here The DBA Applies, Appellants Are Immune From Liability Lawsuits In 

Any Court. 

In order for responsible federal contractors to accompany the U S Armed Forces on 

the battlefield, it is essential that their immunity from liability for casualties 

be federally protected and uniformly upheld by federal courts. Nothing could be 

more destructive of the all-volunteer, Total Force concept underlying U.S. military 

manpower doctrine than to expose the private components to the tort liability 

systems of fifty states, transported overseas to foreign battlefields It is the 

intent of the DBA to avoid that result by borrowing the LHWCA's abrogation of tort 

liability, and bolstering it with the DBA's own exclusivity provision. 42 U.S.C. § 

1651(c). The result is to create battlefield immunity necessary for *25 contractors 

to contribute to the mix of Total Forces in accordance with U S. military doctrine. 

Federal courts have long held that the LHWCA “ destroys any underlying tort 

liability of the employer” and substitutes a claim against the United States. 

Robin v. Sun Oil Co., 548 F.2d 554, 556 (5th Cir. 1977); see Brown v. AmericanHawaiian S.S. Co., 211 F.2d 16, 18 (3d Cir. 1954); see also Smither & Co. v Coles,

242 F.2d 220, 222-23 (D.C. Cir. 1957) (statutes like LHWCA bar common-law rights of 

action). By extending the LHWCA overseas, see Lee, 123 F.3d at 804 (LHWCA applies “ 

except to the extent that the DBA modifies a provision of the LHWCA” ). the DBA 

makes employers immune from all suits seeking to impose liability for deaths or 

injuries covered by the DBA See Davila-Perez v Lockheed Martin Corp., 202 F.3d 464 

(1st Cir. 2000). This result obtains because the DBA “ necessarily displaces all 

derivative common-law causes of action based on injury or death of a covered 

employee caused by employer negligence, including wrongful death and survivorship 

actions.” Ross v. DynCorp., 362 F.Supp.2d 344, 352-53 (D.D.C. 2005) (judgment for 

employer on tort claims because DBA applies); see Nauert v. Ace Properties and Cas.

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Ins. Co, Slip Copy, 2005 WL 2085544 (D.Colo. Aug. 27, 2005) (dismissing state law 

claims because DBA applies); Colon v. United States Dept. of the Navy, 223 

F.Supp.2d 368, 370 (D.P.R. 2002) (summary judgment on tort claims because DBA 

applies). 

*26 The DBA's substitution of claims against the United States for private party 

liability is a well-established statutory device that Congress has repeatedly 

favored. and that Federal Courts have routinely enforced. See United States v

Smith, 499 U S. 160 (1991) (Federal Tort Claims Act eliminates federal employee 

liability and substitutes claims against the United States); Brady v. Roosevelt S

S. Co., 3 17 U.S. 575 (1943) (46 U.S.C. § 745 immunizes operators of U.S. vessels); 

Richmond Screw Anchor Co. v. United States, 275 U.S. 331 (1928) (28 U.S.C. § 

1498(a) abrogates federal contractor's liability to patent owners and substitutes 

Court of Claims action) Carr v. United States, 422 F.2d 1007, 1010 (4th Cir. 1970)

(“ Drivers Act abrogates a federal employee's common law right of action” and 

substitutes claim against United States” ), Sparks v. Wyeth Labs, Inc 431 F.Supp. 

411 (W.D.Okla. 1977) (42 U.S.C. §§ 247b(k) eliminates liability of swine flu 

vaccine makers and substitutes action against the United States). Thus, where, as 

here, an employer pays DBA insurance for its employees, Congress makes the employer 

immune from liability. 

In this case, Appellants exercised their right of removal for purposes of claiming 

federally protected immunity. As Appellants stated in their Notice of Removal 25, 

App. at 41, 

“ [t]he DBA and the LHWCA provide the exclusive means by which ‘ an employer, 

contractor (or any subcontractor or subordinate subcontractor with respect to the 

contract of such contractor)’ may be held liable for injuries or *27 death arising 

out of employment covered under the DBA. 42 U S C §§ 1651(a) and 1651(c); 33 U.S.C. 

§ 905(a).” 

It was reversible error for the District Court to take away the right of immunity 

by refusing to dismiss the Complaint. 

IV. THE JUDICIARY MAY NOT IMPOSE STANDARDS ON THE MANNER IN WHICH THE PRESIDENT 

OVERSEES AND COMMANDS THE PRIVATE COMPONENT OF THE TOTAL FORCE IN FOREIGN MILITARY 

OPERATIONS. 

The President of the United States is Commander-in-Chief of the Armed Forces 

pursuant to Article II, Section 2, of the Constitution. The Total Force under the 

President's command consists not only of DoD Components, but also of the National 

Guard and Reserves, as well as federal contractors that accompany and are integral 

to the Total Force in overseas military operations.[FN13] How the President oversees 

and commands these military operations, including his decisions through the chain 

of command concerning the training, deployment, armament, missions. composition, 

planning, analysis, management and supervision of private military contractors and 

their missions, falls outside the role of federal--and perforce state--Courts. As 

the Federal Circuit held in El-Shifa Pharmaceutical Industries Co. v. United

States, 378 F.3d 1346, 1365 (Fed.Cir. 2004), “ federal courts have no role in 

setting even minimal standards” to plan and execute military missions *28 overseas 

causing destruction of lives or property. Therefore, even if Congress had never 

enacted the DBA, this action would still require dismissal. 

FN13. DoD Instruction No. 3020.37, supra n.4. 

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The political question doctrine, see Baker v. Carr, 369 U.S. 186 (1962). is one of 

the sets of principles that safeguard from judicial inquiry decisions made by 

civilian political leaders through the military chain of command, including, in 

this case, decisions to hire contractors to protect military supply lines from 

enemy attack. As the Supreme Court held in Gilligan v. Morgan: 

“ The complex subtle, and professional decisions as to the composition, training, 

equipping and control of a military force are essentially professional military 

judgments, subject always to civilian control of the Legislative and Executive 

Branches.” 

413 U.S. I 10 (1973)(Ohio National Guard's training, weaponry and orders are nonjusticiable where deficiencies allegedly led to civilian deaths) (emphasis in 

original). These principles shield contractors from tort liability for military 

deaths. Bentzlin v. Hughes Aircraft Co., 833 F.Supp. 1486, 1497-98 (C D.Calif. 

1993); App. at 441-442. The relevant fact is not whether a contractor's defective 

work caused military deaths; rather, it is that “ soldiers injured at the hands of 

the military raise political questions.” Bentzlin, 833 F.Supp. at 1498. 

Here Decedents were performing a classic military function-providing an armed 

escort for a supply convoy under orders to reach an Army base-with an authorization 

from the Office of the Secretary of Defense that classified their mission as “ 

official duties[.]” App. at 441-42. The Secretary of Defense *29 designated the 

Decedents to perform official military duties under fire in a theater of war, and 

any inquiry into whether he should have done so, how he should have done it. and 

how his orders or expectations were followed or not, are non-justiciable political 

questions under Baker v. Carr and its progeny.[FN14] 

FN14. At the time of Decedents' deaths, Coalition Provisional Authority (“ 

CPA” ) Order 17 permitted defined third party claims to be submitted and 

dealt with by the United States, but only to the extent such claims did not “ 

arise in connection with military operations.” Any inquiry by a federal or 

state court into whether the Plaintiffs were killed during military 

operations in Iraq would fall under CPA Order 17 and is barred by the 

political question doctrine and the state secrets doctrine. See Sterling v. 

Tenet, 416 F.3d 338 (4th Cir. 2005) 

The Secretary of Defense designated the Decedents to perform military duties on the 

battlefield. As a matter of separation of powers, all of the potentially relevant 

statutes, including the DBA, the LHWCA, and 28 U.S.C. §§ 1441, 1442, 1447(c) and 

(d), should be interpreted, as in Feres, so as to hold Blackwater and McQuown 

immune from liability for battlefield casualties resulting from such designation. 

Any other result would amount to judicial intrusion into the President's ability to 

deploy a Total Force that includes contractors.[FN15] 

FN15. The principles underlying Boyle v. United Tech Corp., 487 U.S. 500, 504 

(1988), see Hudgens v. Bell Helicopters/Textron, 328 F.3d 1329, 1334 (11th 

Cir 2003) (applying Boyle to service contract); Askir v. Brown & Root Sers

Corp., No 95 Civ. 11008(JGK), 1997 WL 598587, at *6 (S.D.N.Y. Sept. 23, 1997)

(Boyle defense applies to “ performance contracts” ), likewise make 

Appellants immune from suit and require that this action be dismissed. The 

unique federal interest in uniform rules of national application, with 

respect to the use of contractors to support military operations, plainly 

displaces state judicial and legislative jurisdiction in this case. See

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Caudill v. Blue Cross and Blue Shield of North Carolina, 999 F.2d 74, 79 (4th 

Cir. 1993). 

*30 CONCLUSION 

For the foregoing reasons, the Court should reverse the Order and vacate the 

Judgment of the District Court, and remand this case to the District Court with 

instructions to dismiss the case with prejudice. 

Oral argument is respectfully requested. 

BLACKWATER SECURITY CONSULTING, LLC, et al., Defendants - Appellants, v. NORDAN, 

Plaintiff- Appellee. 

2005 WL 3783349 (C.A.4) 

END OF DOCUMENT 

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